HKSAR v. Chow Shing Kee Investment Co Ltd

HCMA 513/2018

[2019] HKCFI 2343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 513 OF 2018

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO ESS 23272 OF 2017)

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BETWEEN

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Before: Deputy High Court Judge Sham in Court

Date of Hearing: 11 June 2019

Date of Judgment:  3 October 2019

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J U D G M E N T

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INTRODUCTION

1.This case concerns the non-compliance of a building order (BO) to dismantle an illegal structure, namely, two large metal frames mounted on the wall of a supermarket for supporting air-conditioners.

2.The facts of the case are very simple and straightforward - the appellant company was the owner of the business premises[1] in question which rented out the premises for use as a supermarket. The walls of the supermarket facing the backyard and the side alley had large metal frames (the unauthorized structures) either built on or attached to it to hold air-conditioners to keep the supermarket cool.

3.Undisputed are the facts that the metal frames are unauthorized structures and the backyard or alley where the metal frames are located is part of the common area of the Malahon Apartments. In other words, the outer walls of the supermarket belong to the Incorporated Owners of the Building where the Malahon Apartments are situated.

4.As it is clear from the evidence that the air-conditioning system in question provides cool air through ductwork inside the supermarket - that is the main part of the system remains outside and the cool air is brought into the supermarket by way of ducts or pipes, so it is the ducts or pipes that connect the system to the supermarket.

5.As early as in October 2013, the Building Authority served a BO on the appellant company requiring it to remove the unauthorized structures and put the place back to its original position within 60 days.

6.Having failed to comply with the BO which resulted in the appellant company receiving a summons[2] in June 2017 of non-compliance with a BO without reasonable excuse.

7.The case was heard before the magistrate, Mr Lam Tsz-kan, sitting in the Eastern Magistracy. Following a trial, the appellant company was convicted and fined $5,000. It now appeals against the conviction.

8.The trial was conducted in Chinese in the court below, but on appeal, the appellant hired Mr Andrew Bruce SC leading trial counsel, Mr Lewis Law, to conduct the appeal.

GROUNDS OF APPEAL

9.Mr Bruce SC raised two issues on appeal, which were the same issues in the court below:

(1)  whether the BO was lawful/ valid;

(2)  whether the appellant company had a reasonable excuse.

DISCUSSION

Issue 1

10.Mr Beney Wong, Acting SADPP, for the respondent asked the first question that whether it is open to a defendant in a criminal court to challenge the validity of a BO (such a question had not been canvassed in the court below), his position is that no collateral challenge to the validity of the building order should be allowed in the criminal proceedings before a magistrate, but he said should the court find it appropriate to hear both grounds of appeal, he would submit that there is no merit in neither of them.

11.An appeal mechanism is indeed provided for under Part 6 of the Ordinance, anyone aggrieved by any decision made by the Building Authority including a BO may appeal to the Appeal Tribunal.

12.Mr Wong has cited a number of authorities[3] in support of his submission, the main theme from these authorities seem to suggest that since the Building authority is not a party to the criminal proceedings, given the technicalities of the issues involved, including those concerning safety and regularity of building works, the Appeal Tribunal is obviously better equipped than a Magistrate’s Court to deal with a challenge to the validity of a building order.

13.Mr Bruce SC, however, submitted that there is no issue on the validity of the BO; service is an element of the offence, and it was physically served on the appellant company, the issue here is whether the appellant company was liable to be served.

14.The relevant part of Section 40(1BA) of the Buildings Ordinance reads:

“Any person who, without reasonable excuse, fails to comply with an order served on him under section 24(1) shall be guilty of an offence……” (emphasis added)

15.I am inclined to agree with Mr Bruce SC that service of the BO forms an element of the offence. The word “service” here must mean it has been properly served on the accused, if the accused thinks otherwise, he must have the right to challenge it in the criminal proceedings. It is therefore in my view a matter within the province of the court to determine whether or not the prosecution has proved every element of the offence at the end of the day.

Ground 1

16.As it is clear from the evidence the bulk of the air-conditioning system remains outside the supermarket, which were put in place by the use of the illegal structures, namely, the metal frames which were either attached or mounted to the wall, so the only thing that connects the system and the supermarket is piping. It is the argument of Mr Bruce SC that such piping cannot be regarded as “connected to” within the meaning the provision of section 24 (2A), it has to be something in the form of building works.

17.Such being the case, Mr Bruce SC argued, the BO was wrongly served on the appellant company which did not own the land, i.e., the outer walls of the supermarket (the real owner being the Incorporated Owners of the Building), on which the illegal metal frames were on.

18.Section 24 concerns the order for demolition, removal, or alteration of building, building works or street works.

Section 24(1) reads:

“Where any building has been erected, or where any building works or street works have been or are being carried out in contravention of any of the provisions of this Ordinance the Building Authority may by order in writing require-

(a) the demolition of the building, building works, or street works; or

(b) (Repealed)

(c) such alteration of the building, building works or street works as may be necessary to cause the same to comply with the provisions of this Ordinance, or otherwise to put an end to the contraventions thereof,

and in every case specified the time within which the demolition, alteration or work required by such order shall be commenced and the time within which the same shall be completed.”

19.The BO under section 24(1) may be served on the owner of the land or premises on which the illegal structures stand (Section 24(2)) or on the owner of the land other than the land or premises on which the illegal structures stand but connected to such land or premises (Section 24(2A)).

20.The relevant part of Section 24(2) reads:

“An order made under subsection (1) shall be served on-

(a)  in the case of a building or building works but subject to subsection (2A), the owner of the land or premises on which the building has been erected or on which to building works have been or are being carried out;”

21.The relevant part of Section 24(2A) reads:

“Where the building or building works referred to in subsection (2)(a) is or are-

(a)  connected to land or premises (in this section referred to as other land or premises) other than the land or premises on which the building has been erected or on which the building works have been or are being carried out; and

(b)  occupied or used by the owner or occupier of that other land or premises,

subsection (2)(a) shall not apply and in such a case, and order made under subsection (1) in respect of the building or building works shall be served on the owner of that other land or premises.” (emphasis added)

22.The learned magistrate set out his reasoning in the following way:

(1)  He first held that the court should adopt a purposive interpretation of section 24;

(2)  He then said the enactment of section 24 (2A) in 2004 enabled the Authority concerned to combat the problems of unauthorized structures more effectively and to hold more people responsible for such unauthorized structures. 

23.He went on to find that the defence’s interpretation to be too narrow. In paragraph 30 of his Statement of Findings, he said:

“Under this premise, I do not think the Defence’s interpretation is appropriate because it makes the legislation too narrow for law enforcement. For instance, common unauthorized building works in Hong Kong include canopies and drying racks on the external walls of buildings. Such structures are mostly built on the external walls of the buildings but wholly catered for users within the premises. I think section 24(2A) is exactly directed against such structures. If the Defence’s interpretation were correct, the Buildings Department could only issue an order to the owner of the external wall, rather than the actual users, because the structures are only ‘attached to’ the external wall, the situation would not be desirable.”

24.Finally, the learned magistrate was satisfied that the BO was properly served on the appellant company being the owner of the other land, he said[4]:

“Under this interpretation, in my opinion, the unauthorized building works are connected to the Premises in various ways:

(1)  On both metal frames, air-conditioning ducts are found to extend directly into the Premises and the ducts form a connection;

(2)  The component iron bars of Structure A are embedded in the external wall of the Premises, behind which the Premises are located, so they are connected by land;

(3)  The land where Structures A and B are located is adjoining to the Premises, and they are likewise connected by land.”

25.Supporting the magistrate’s decision, Mr Wong, SADPP for the respondent, said[5]:

“The Respondent further submits that the learned Magistrate correctly rejected the Defence’s argument that allowing external objects to serve as the medium of connection within section 24(2A) is so wide an interpretation as to result in unfairness, and correctly found that given the dual conditions under section 24(2A), that is, only the actual user/occupier of the unauthorized structures would be targeted, this would not cause and fairness to others.”

26.Suppose the BO was instead served on the Incorporated Owners of the outer walls of the supermarket upon which the unauthorized structures (the metal frames) stood, the Building Authority would in all likelihood be met with a just complaint from the Incorporated Owners that they were not the actual users of the unauthorized structures in question which might have been erected without their consent etc., and a just demand that they be excused. At the end of the day, the company or person who benefited directly from the unauthorized structures would invariably be called upon to deal with the matters.

27.Section 24(2A) saves all these troubles and enables the Authority to go after those companies or persons who are enjoying the benefit from the unauthorized structures regardless of who had erected them in the first place. It would be to my mind a parody of justice if these people who have the legal as well as moral obligations to deal with the unauthorized structures cannot in law be called upon to do so.

28.Here in the present case, the supermarket is clearly the beneficiary of the unauthorized structures in question having the comfort of ventilation the air-conditioning system provided; the appellant being the landlord of it is rightly called upon to deal with the matters.

29.In order to give effect to the purpose of the legislation, the learned magistrate said the words “Connected to” would point to an even broader meaning - “Connected to” emphasizes the connection between two objects which can be linked together by another object; it is not necessary for the two objects to be attached to each other. I entirely agree with the learned magistrate’s opinion.

30.Ground 1 fails.

Ground 2

31.The appellant company’s position is that they encountered no difficulty in dismantling the unauthorized structures in question, it is the consequences which presented problems to them because they had made every effort to relocate the air-conditioning system but to no avail. That, argued the appellant company, constituted the reasonable excuse.

32.The learned magistrate accepted as facts that the appellant company had discussed the issue with different professionals and also tried to relocate the air-conditioning units by various means as advised by the professionals, but in fact, none of the options was technically feasible, but made a distinction between “removing metal frames” and “relocating the air-conditioning units”.

33.In paragraph 41 of his Statement of Findings, the learned magistrate said:

“However, I believe that ‘removing the metal frames’ and ‘relocating the air-conditioning units’ are two different types of work. The order in this case is to ‘remove the metal frames’ and a reasonable excuse should only cover the problems of complying with that order, that is, the problems of ‘removing the metal frames’. For example, the technical difficulties to remove the metal frames or the danger posed by the removal of the metal frames itself, these would constitute a reasonable excuse, but the consequences caused by nowhere to locate the air-conditioning units after the removal of the metal frames should not be taken into account.”

34.The relocation of the air-conditioning units, difficult thought it was, the learned magistrate did not accept it as a reasonable excuse, he said[6]:

“I certainly accept that the metal frames were not built by the Appellant.The metal frames already existed before the Appellant’s purchase of the Premises, but the reasoning is the same. The way to avoid the present dilemma is not to breach the law at the beginning, so I do not accept that the difficulties caused to the Appellant after complying with the order constitute a reasonable excuse.”

35.Mr Wong on behalf of the respondent submitted that in the present case the BO merely required the appellant to remove the structures (but not to relocate the air-conditioning devices) and the appellant accepted that mere demolition of the structures is not difficult. The difficulty put forward by the appellant (being the difficulty following the removal of the structures) had no direct relevance to the compliance of the building order.

36.I think the learned magistrate was right in saying that the predicament the appellant found itself in had something to do with the breaking of the law by the erection of illegal structures initially. The appellant’s argument seems to me is like taking the effect for the cause.

37.As one can see from the photographs, the air-conditioning units are massive – one on the side lane and the other on the backyard - both were held in place by the large metal frames. It would undoubtedly be difficult to accommodate them elsewhere (certainly not inside the supermarket); but there is no way around the fact that these are unauthorized buildings works which should not have been there in the first place.

38.The purpose of a BO is for the owner to remove the unauthorized structures and put the situation back to its original position. When someone erects an unauthorized structure such as in the instant case a massive air-conditioning unit to ventilate the supermarket, now he has to remove it in accordance with the law, it would not be right for him to complain the premises cannot be run as a supermarket anymore because of the lack of ventilation.

39.The premises, in all likelihood, were originally built for use other than a supermarket with a massive air-conditioning unit, obviously someone had subsequently changed its use without the consent of the Authority concerned, now the appellant was asked to put the situation back to normal, in the circumstances, no one in their right senses would think it just to allow the appellant to benefit from such a wrongdoing.

40.Grounds 2 also fails.

CONCLUSION

41.The appeal against conviction is therefore dismissed.

Mr Beney Wong, SADPP(Ag) and Mr Kelvin Tang, SPP(Ag) of the Department of Justice, for the Respondent.

Mr Andrew Bruce, S.C. leading Mr Lewis Law, instructed by Messrs K &L Gates, for the Appellant.